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AMARJEET SINGH v BHAGWAN KAUR & ORS - CFA Case No. 88 of 2003 [2005] RD-RJ 622 (17 March 2005)







Mr. SL JAIN, for the appellant / petitioner

Mr. RR NAGORI, for the respondent

Date of Order : 17.3.2005




By the impugned Judgment and decree, the plaintiff's suit for specific performance of contract was decreed in the manner, that the plaintiff was found entitled for sum of Rs. 60,000/- from the defendant

Bhagwan Kaur, while the prayer for specific performance etc. against all the defendants was rejected, and further order regarding Mesne

Profits was also passed. Against this Judgment and decree, present appeal was filed, which came up for consideration on 2.5.2003, on which date, show cause notice was ordered to be issued, and Mr. Nagauri, appeared on behalf of respondent nos.2 to 4. At the same time, record was ordered to be requisitioned, with further direction to list the matter for admission immediately after receipt of record, till then, the status quo was directed to be maintained. Thereafter, matter went on being adjourned from date after dates, and in that sequence, on 23.2.2004, after hearing the parties the appeal was admitted. However, the parties sought time to argue the stay petition, the matter was therefore adjourned. Then on 13.5.2004, it was recorded that appeal be listed on 18.5.2004. Meanwhile, copy of the reply filed by the respondent, be provided to the learned counsel for the appellant.

Thereafter, matter was adjourned, and/or not reached, and comes up today.

Today, learned counsel for the appellant only argued his application dated 3.52003, filed for invoking inherent powers of this

Court, and prayed, that respondent nos. 2 to 4 may be directed to restore the possession of the appellant, which they have obtained forcibly by taking law in their own hands.

The averments made in the application are, that the order of status quo was passed on 2.5.03. Then it is alleged that trial court observed that appellant is continuing in possession under the orders of this court dated 12.9.94, and respondents have no right to take law in their own hands and dispossess the appellant. It is then alleged in para no.4 of the application, that respondent nos.2 to 4 applied for change in the mutation in their name, before the Tehsildar on 25.4.03, and prayed before the Tehsildar to deliver the possession to them. The

Tehsildar has passed the order on 30.4.03, observing that respondent nos.2 to 4 had forcibly entered upon the land in dispute on 27.4.2003, and entry to this effect was made by the Patwari in his daily diary. On this basis, the Tehsildar passed the order for mutation in favour of respondent nos.2 to 4, observing that the question of legality of the land can only be decided by law. The copies of order, and daily diary of the Patwari, have been annexed with the application.

In reply to this application, it was submitted, that passing of the order by this court dt. 2.5.03 was admitted. Then replying para no.3, the contents were not admitted, as the trial court had passed the order dt. 2.3.94, thereafter, appeal was decided, and special appeal was filed, which was also decided, and to the knowledge of respondents, there is no such order, that respondents cannot take possession. It was also alleged, that there was conditional order passed by High Court, and thereafter the trial court passed a separate order on 10.6.95.

Replying para no.4, it is pleaded, that the injunction order passed by the trial court was, till final disposal of the suit, and the suit was rejected by the trial court on 21.4.03. Thereafter, there was no injunction. The filing of application before Tehsildar is not disputed, but it is contended, that at the time of filing of application, disputed land was lying vacant. Passing of order dated 30.4.03 is not disputed, and it is further contended, that as there was no injunction order against the respondents, therefore, respondents occupied the vacant land, and the same was cultivated by them, and that mutation has rightly been sanctioned by the Tehsildar. The details, of the presently standing crop, is given in this reply, and it is prayed that application may be dismissed.

Arguing the application, it was contended, that while deciding issue no.1, the trial court found, that the appellant was in possession of the land, and there is no order passed by any court, tribunal or authority, entitling the respondents to be put into possession, and it is not permissible to these respondents to take law in their own hands and take possession. Thus it is contended, that the alleged action of the respondents in taking possession on 27.4.03, is grossly high-handed action of the respondents. It is also contended, that nobody has asked the Patwari to submit the report about the possession, and there was no occasion for him to submit report regarding possession. It is also submitted, that order of Tehsildar dated 30.4.03 has been passed sanctioning mutation in favour of respondent nos.2 to 4, which shows that the whole thing was a stage managed thing, for facilitating the action of taking possession by the respondent no.2 to 4.

The learned counsel for the respondent submitted that much before passing of the order dated 2/5/2003 the possession had already taken by the respondents no. 2 to 4 and then this court directed the status quo to be maintained, in that view of the matter the present application is required to be dismissed.

I have considered the submissions.

In my view, from the material placed on record, it is no mere in dispute that respondent nos.2 to 4 have taken possession of the land on 27.4.03, it also does not appear to be in dispute, that there was no order passed, whether by trial court, or by any court, tribunal, or authority, to authorise the respondent nos.2 to 4 to take possession of the land. It also does not appear to be in dispute, that on 25.4.03, the defendant nos. 2 to 4 filed the application to the Tehsildar for being delivered possession, and it is in these sequence, the daily diary of Patwari recording the encroachment on the land in question by the respondents no. 2 to 4 was submitted. The precise contents of the dairy are " - - 0 0 9 & ' while

" according to the stand taken in reply, the land was lying vacant, which they occupied.

In my view, it will be better for me, not to enter into the controversy about the right of respondents to take over the possession of the land, in the manner whether as alleged by appellant, or in the manner as alleged by respondents, or in the way which is said to have been taken. However, since the order dated 2.5.03 was passed for maintaining the status quo, it is well nigh possible, that in the appellants' seeking their remedy, for redressal of the above grievance, the order of this court dated 2.5.2003 must be coming in the way of appellant.

In these circumstances, I think it proper to clarify the order dated 2.5.03, in the manner, that that order will not come in the way of appellant, in seeking such legal remedy, civil, criminal or whatever, as may be available to him, for the grievance arising, on account of alleged action of the respondent nos. 2 to 4 dt. 27.4.03, or of the passing of order dt. 30.4.03.

The application is, accordingly, disposed of.

As noticed above, the appeal has already been admitted, office to proceed.

( N P GUPTA ),J. /Srawat/


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